Fish farming court order confounds federal government

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      A landmark court decision regarding the regulation of fish farms continues to cause legal ripples.

      Last February, fish biologist Alexandra Morton and a few other petitioners won a declaration that provincial regulation of the ocean-finfish aquaculture industry was unconstitutional. In his written decision, B.C. Supreme Court Justice Christopher Hinkson ruled that under the Constitution Act, 1867, the federal government is responsible for management and protection of fisheries. He ordered an end to provincial regulation over ocean-finfish aquaculture by February 9, 2010.

      Morton has often claimed that regulators are not addressing the threat of sea lice from fish farms to wild salmon. “Salmon farming is the emperor with no clothes, and I really just want people to see that,” she said in a phone interview with the Georgia Straight.

      In late December, the federal government was back in B.C. Supreme Court, asking Hinkson to extend the deadline to December 2010. In a November 5 affidavit, Fisheries and Oceans Canada’s director general of the aquaculture management directorate, Trevor Swerdfager, swore that it was impossible to create a federal regulatory regime in time to meet the court-ordered deadline. He described the impact of the B.C. Supreme Court decision as “monumental” on aquaculture governance, claiming it would require the hiring up to 50 new staff.

      According to Swerdfager’s affidavit, there are more than 300 aquaculture sites and more than 700 provincial licences in B.C. He declared that the B.C. industry’s wholesale revenue exceeded $500 million in 2007. As a result of the court decision, the federal government would be required to create new regulatory and administrative regimes in a variety of areas. This includes receiving licence applications, deciding where farms should be located, collecting fees, and developing and mandating standards for the design of net cages and for preventing escapes.

      Swerdfager stated that the decision struck down provincial licensing issued under the B.C. Fisheries Act and the pollution-management provisions of the Finfish Aquaculture Waste Control Regulation. “Replacing these provisions is not a simple matter,” he claimed.

      However, Fisheries and Oceans Canada suggested on its Web site that it could regulate fish farming: “If the extension is not granted by the Court, DFO [Fisheries and Oceans Canada] will establish and implement appropriate interim measures for the management of aquaculture in BC.”

      Morton’s lawyer, Greg McDade, told the Straight by phone that the federal government won’t explain what those “interim measures” entail. “They filed an affidavit that was in conflict with what they had put up on their public Web site,” McDade claimed.

      This is just one odd aspect of the case. Morton said that one respondent, Marine Harvest Canada Inc., has argued in court that it owns the fish under its control. However, she claimed that it’s unconstitutional to own fish in the ocean, and that Hinkson has already ruled that the ocean exists inside and outside of an open-net pen. “Our position is that if Marine Harvest wants to know who owns their fish, they need to go to court and do this on their own dime,” Morton said.

      McDade described the debate over ownership of the fish as an interesting “academic question”, but claimed that it’s not relevant to the public-policy debate. “The question of whether this is private property or not is way less interesting than the question of whether people have the right to interfere with the public fishery or not,” he said.

      Marine Harvest’s lawyer, Chris Harvey, and Fisheries and Oceans Canada staff did not respond to the Straight’s requests for a response by deadline. Hinkson reserved his decision.

      Morton said that if Hinkson grants the federal government’s request for an extension, he should also prohibit the provincial government from allowing the expansion of ocean-finfish aquaculture in B.C. in the interim.

      Comments

      22 Comments

      Good For You Alexa

      Dec 30, 2009 at 7:26am

      Can this decision by the courts finally regulate FF's in a manner that protects wild salmon? Good for you Alexa it's time our Premier, Gutless Gordon, and the rest of his spineless minions were put on notice that the end of their tenure of this industry is coming. The only fear I have is that the DFO will continue to allow the FF's to continue unabated in their destruction of Wild Salmon. The DFO's record to date doesn't give me much faith. The ministry was instrumental in overseeing the destruction of the east coast Cod fishery. It is gutless in regulating the Fraser River fishing and I could go on and on. I only hope Alexa's win this time finally results in keeping the wild salmon fishing industry sustainable.

      Peter Eller

      Dec 30, 2009 at 9:29am

      Excellent!!!

      it about time some one held the BC "CONSERVATIVES" to account for their raping and pillaging of this province

      Shepsil

      Dec 30, 2009 at 4:13pm

      It is crystal clear that fish farming is damaging the marine environment and that federal fisheries officials should not be let off the hook here. The solution to this problem is enforcement of our environmental & fisheries laws, not allowing this poor management of the Sockeye to carry on for another year!

      The courts must impose penalties on the gov't if they do not assume their responsibilities, and if fish farms are damaged as a result, then that is their cost of doing business in BC.

      Our country's marine environment must be restored, even at the cost of shutting down all fish farms. The restoration of salmon runs will far outweigh any such loss of fish farms!

      Robert Carter

      Dec 30, 2009 at 4:14pm

      The fish farming industry is as bad as the logging industry in the 70's & 80's. They only care about profit and when you think of it, the less wild salmon out there the more they profit. They should be shut down immediately and only allowed to operate with closed pens. It's been a disaster. Unelect Gordon Campbell NOW !

      Dan.e

      Dec 30, 2009 at 6:58pm

      Good-bye and good riddance to all fish farms...farmed salmon isn't just destructive it tastes like ass!

      RickW

      Dec 30, 2009 at 8:31pm

      I think only THIS federal government would be "confounded" by a simple ruling such as this. Perhaps that is the real reason they prorogued Parliament.............
      RickW

      Bob_Does_Not_Eat_Crap

      Dec 30, 2009 at 8:38pm

      Just do not buy or consume any Farmed Fish Crap anywhere, Restaurants and/or Grocery Stores,

      Consumers (us) collectively have more power than any Govt, Court or Company, vote with your $$$!!!

      A Morton ROCKS!!!

      Period end of story.

      Dallas E. Weaver, Ph.D.

      Dec 30, 2009 at 11:16pm

      Watching the stupidity that follows from advocacy science is quite entertaining. All these studies about sea lice don't seem to ever include the data from the actual farms (which is on the internet). The declined in salmon populations on the entire west coast (BC to California) has been consistent and inverse with the population density along the coasts, but you have to assume a non-linear interaction to match the data to salmon farms which starter later that the population increases. Of course, in Washington, Oregon and California they don't have salmon farms and have to blame the salmon declines on other factors like dams, irrigation, forestry, etc. Ocean conditions, human populations, protected fish eating birds (herons, terns and cormorants etc.), seals and sealions are not relevant relative to the politically correct target of

      RS

      Dec 31, 2009 at 8:59am

      To think that the feds have the will to protect our wild stocks from the pestilent fish farms where Campbell wouldn't is, in a word, naive.

      glen p robbins

      Dec 31, 2009 at 10:16am

      In the very near future, all industries will be need to be properly measured by total cost accounting. In the case of fish farms for example, proponents would say-to shut them down would hurt the economy, and cost jobs. The response from critics would (correctly) be, what other jobs might have been created--and what is the total cost of keeping this industry going. The same arguments will relate to matters of shale oil--independence over energy resources, and the need to develop new industries which do not COST so much to maintain.

      The development of new industries in the midst of stressful economic times, is, in my opinion, the most important conversation(s) that we will have---(moving forward).